Sandvik AB v. US

• Decision Date: 14 September 1989
• Docket Number: Court No. 87-12-01211.
• Citation: 721 F. Supp. 1322
• Parties: SANDVIK AB, AB Sandvik Steel and Sandvik Steel Company, Plaintiffs, v. UNITED STATES, United States Department of Commerce and United States International Trade Commission, Defendants, and Al Tech Specialty Steel Corporation and Carpenter Technology Corporation, Defendant-Intervenors.
• Court: U.S. Court of International Trade

721 F. Supp. 1322

SANDVIK AB, AB Sandvik Steel and Sandvik Steel Company, Plaintiffs, v. UNITED STATES, United States Department of Commerce and United States International Trade Commission, Defendants, and Al Tech Specialty Steel Corporation and Carpenter Technology Corporation, Defendant-Intervenors.

Court No. 87-12-01211.

United States Court of International Trade.

September 14, 1989.

COPYRIGHT MATERIAL OMITTED

Akin, Gump, Strauss, Hauer & Feld (Warren E. Connelly, Rory F. Quirk), Washington, D.C., for plaintiffs Sandvik AB, AB Sandvik Steel and Sandvik Steel Co. Stuart E. Schiffer, Acting Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., M. Martha Ries, Lyn M. Schlitt, Gen. Counsel, James A. Toupin, Asst. Gen. Counsel, U.S. Intern. Trade Com'n., Washington, D.C., Timothy M. Reif, New York City, Matthew P. Jaffe, of Counsel, Office of the Chief Counsel, for Import Admin., U.S. Dept. of Commerce.

Collier, Shannon, Rill & Scott, David A. Hartquist, Washington, D.C., for defendant-intervenors Al Tech Specialty Steel Corp. and Carpenter Technology Corp.

OPINION AND JUDGMENT

CARMAN, Judge:

Sandvik AB, AB Sandvik Steel and Sandvik Steel Company (hereinafter plaintiffs) move pursuant to Rule 56.1 for judgment upon the agency record contending that the final affirmative determination of the United States International Trade Commission (hereinafter ITC) in Stainless Steel Pipes and Tubes from Sweden, USITC Pub. No. 2033 (Nov.1987) 52 Fed.Reg. 45,256 (Nov. 25, 1987) and the final affirmative determination of the Department of Commerce, International Trade Administration (hereinafter Commerce or ITA) in Final Determination of Sales at Less Than Fair Value; Stainless Steel Hollow Products From Sweden, 52 Fed.Reg. 37,810 (Oct. 9, 1987) as amended 52 Fed.Reg. 45,985 (Dec. 3, 1987) are not supported by substantial evidence on the record or otherwise not in accordance with law. Defendants and defendant-intervenors oppose the motion and seek affirmation of the determinations.

BACKGROUND

The ITA received on October 17, 1986 a petition filed by the Specialty Tubing Group (hereinafter Specialty Tubing), which was amended to include the United Steelworkers of America (hereinafter United Steelworkers) on February 6, 1987, on behalf of the United States domestic industry producing certain stainless steel hollow products (hereinafter SSHP) alleging that imports of SSHP were being or were likely to be sold in the United States at less than fair value and that imports were causing material injury or threatened material injury to a United States industry. Specialty Tubing was made up of six domestic producers, two of which were defendant-intervenors Al Tech Specialty Steel Corporation (hereinafter Al Tech) and Carpenter Technology Corporation (hereinafter Carpenter) who produced the seamless SSHP. The ITA made a preliminary affirmative determination and notified the ITC. Certain Stainless Steel Hollow Products From Sweden; Preliminary Determination of Sales at Less Than Fair Value, 52 Fed. Reg. 19,369 (May 22, 1987).

The ITC determined that an industry in the United States was materially injured by reason of imports from Sweden of seamless stainless steel pipes, tubes, hollow bars and blanks that had been found by the ITA to have been sold at less than fair value in the United States. USITC Pub. No. 2033 at 1. The ITC found that there was no material injury or threat of material injury and that an industry within the United States was not materially retarded by reasons of imports from Sweden of welded stainless steel pipes, tubes hollow bars and blanks that had been found by the ITA to have been sold in the United States at less than fair value. Id.

CONTENTIONS OF THE PARTIES

Plaintiffs' Contentions

Plaintiffs make the following contentions:

(1) petitioners did not have standing to file their petition for the following reasons:

(a) a majority of the domestic industry did not support the petition;

(b) petitioners have an affirmative burden of proving that they represent a majority of the domestic industry;

(c) the United Steelworkers do not satisfy the interested party requirement of the statute; and

(d) the ITA based its standing determination on the class or kind of merchandise as opposed to whether the merchandise was a like product.

(2) The material injury causation analysis of the ITC was flawed for the following reasons:

(a) the ITC failed to recognize the distorting impact of the data of domestic producer Babcock & Wilcox which left the seamless stainless steel pipe and tube industry in 1985;

(b) the ITC failed to analyze correctly the data gathered concerning the indicators of material injury and causation;

(c) redrawers, also known as non-integrated producers, were included as part of the domestic industry, but were not included in the analysis of whether the domestic industry suffered material harm; and

(d) Sandvik Steel Company, a domestic producer of seamless stainless steel pipes and tubes, was erroneously excluded from the domestic industry for the purposes of the ITC's injury analysis on the ground that it was a related party.

(3) The ITC erroneously found that the alleged material injury suffered by the domestic industry was caused by less than fair value imports from Sweden.

(4) The determination of sales made by Sandvik at less than fair value was flawed for the following reasons:

(a) the ITA erroneously deducted from its calculation of the United States Price in exporter's sales price transactions, part of the profit which Sandvik Steel Company made on its domestic sales of products which it further processed;

(b) the ITA failed to match comparable quantities of merchandise sold in the United States and in the home market (or third country). Where such matches could not be made, the ITA failed to make any adjustment for the effect of quantity on price despite plaintiffs' demonstration of the relationship between quantity and price; and

(c) the ITA erroneously calculated the United States price on the basis of sales which plaintiffs made to an unrelated reseller located in a third country.¹

Defendants' Contentions

Defendant ITA contends the following determinations were reasonable, supported by substantial evidence on the record and in accordance with law:

(a) the ITA's initiation of the antidumping duty investigation;

(b) the ITA's determination that the petition was filed on behalf of the domestic industry;

(c) the ITA's determination that the United Steelworkers were properly joined as a co-petitioner;

(d) the ITA's determination to deduct from the exporter's sales price the profit associated with the cost of additional manufacture and sale of finished product in the United States;

(e) the ITA's denial of Sandvik's claimed quantity adjustment;

(f) the ITA's determination to include within its purchase price calculations, sales from Sandvik to an unrelated middleman.

Defendant ITC contends its determination, including the following specific decisions, was reasonable, supported by substantial evidence on the record and in accordance with law:

(a) the ITC's decision to exclude data for Sandvik Steel Company from the domestic industry data under the related parties provision of the statute;

(b) the ITC's analysis which explicitly described and considered data for redrawers as well as integrated producers in its material injury analysis;

(c) the ITC's analysis of data relating to the condition of the domestic industry as a whole, including aggregate data for integrated producers; and

(d) the ITC's analysis of the volume of the subject imports and their price effects.

Defendant-Intervenors' Contentions

Defendant-intervenors Al Tech and Carpenter Corporation contend that the final affirmative determinations of the ITA and the ITC should be affirmed in all respects.

STANDARD OF REVIEW

In reviewing an antidumping investigation and determination, this Court must hold unlawful any determination unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(1)(B) (1982). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951) (quoting Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). "The court may not substitute its judgment for that of the agency when the choice is `between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo....'" American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F.Supp. 1273, 1276 (1984) (quoting Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465), aff'd sub nom. Armco, Inc. v. United States, 3 Fed.Cir. (T) 123, 760 F.2d 249 (1985).

STANDING

Pursuant to section 1673a of 19 U.S.C., there are two methods of initiating an antidumping duty investigation. The investigation may be commenced by either the ITA on its own initiative (19 U.S.C. § 1673a(a)) or by the filing of a petition (19 U.S.C. § 1673a(b)) as was done by Specialty Tubing in the instant case. This petition was amended to include the United Steel-workers. The ITA determined that the petitioners had satisfied the requirements as set out in 19 U.S.C. § 1673a(b)(1). The Statute reads as follows:

(b) Initiation by petition

(1) Petition requirements

An antidumping proceeding shall be commenced whenever an interested party described in subparagraph (C), (D), (E), or (F) of section 1677(9) of this title files a petition with the administering authority, on behalf of an industry, which alleges the elements necessary for the imposition of the duty imposed by section 1673 of this title, and which is accompanied by information reasonably available to the petitioner supporting those allegations. The

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